| (III) the number of minor violations multiplied by
1.
(M) The result of the calculations in subparagraphs
(J) - (L) of this paragraph shall be divided by the number of investigations
conducted during the compliance period multiplied by 0.1 plus the
number of complexity points in subsection (e) of this section. If
a site does not have any investigation points and the subtotal from
subsection (e)(1) - (3) of this section equals zero, then one default
point shall be used. Investigations that do not document any violations
will be the only ones counted in the compliance history formula. The
number of investigations multiplied by 0.1 shall be rounded up to
the nearest whole number. If the value is less than zero, then the
site rating shall be assigned a value of zero. For the purposes of
this chapter, an investigation is a review or evaluation of information
by the executive director or executive director's staff or agent regarding
the compliance status of a site, excluding those investigations initiated
by citizen complaints. An investigation, for the purposes of this
chapter, may take the form of a site assessment, file or record review,
compliance investigation, or other review or evaluation of information.
(N) If the person receives certification of an environmental
management system (EMS) under Chapter 90 of this title (relating to
Innovative Programs) and has implemented the EMS at the site for more
than one year, then multiply the result in subparagraph (M) of this
paragraph by 0.90, which is (1 - 0.10) and this is the maximum reduction
that can be received for an EMS. If the person receives credit for
a voluntary pollution reduction program or for early compliance, then
multiply the result in subparagraph (M) of this paragraph by 0.95,
which is (1 - 0.05). The maximum reduction that a site's compliance
history may be reduced through voluntary pollution reduction programs
in this subparagraph is 0.85, which is (1 - 0.15). If site participates
in both EMS and voluntary pollution reduction programs then the maximum
reduction that a site's compliance history may be reduced through
EMS and voluntary programs in this subparagraph is 0.75, which is
(1 - 0.10 - 0.15).
(2) Point ranges. The executive director shall assign
the site a classification based upon the compliance history and application
of the formula in paragraph (1) of this subsection to determine a
site rating, utilizing the following site rating ranges for each classification:
(A) fewer than 0.10 points--high performer;
(B) 0.10 points to 55 points--satisfactory performer;
and
(C) more than 55 points--unsatisfactory performer.
(3) Mitigating factors. The executive director shall
evaluate mitigating factors for a site classified as an unsatisfactory
performer.
(A) The executive director may reclassify the site
from unsatisfactory to satisfactory performer with 55 points based
upon the following mitigating factors:
(i) other compliance history components included in §60.1(c)(10)
- (12) of this title;
(ii) implementation of an EMS not certified under Chapter
90 of this title at a site for more than one year;
(iii) a person, all of whose other sites have a high
or satisfactory performer classification, purchased a site with an
unsatisfactory performer classification or became permitted to operate
a site with an unsatisfactory performer classification if the person
entered into a compliance agreement with the executive director regarding
actions to be taken to bring the site into compliance prior to the
effective date of this rule; and
(iv) voluntarily reporting a violation to the executive
director that is not otherwise required to be reported and that is
not reported under the Audit Act, or that is reported under the Audit
Act but is not granted immunity from an administrative or civil penalty
for that violation(s) by the agency.
(B) When a person, all of whose other sites have a
high or satisfactory performer classification, purchased a site with
an unsatisfactory performer classification or became permitted to
operate a site with an unsatisfactory performer classification and
the person contemporaneously entered into a compliance agreement with
the executive director regarding actions to be taken to bring the
site into compliance, the executive director:
(i) shall reclassify the site from unsatisfactory performer
to satisfactory performer with 55 points until such time as the next
annual compliance history classification is performed; and
(ii) may, at the time of subsequent compliance history
classifications, reclassify the site from unsatisfactory performer
to satisfactory performer with 55 points based upon the executive
director's evaluation of the person's compliance with the terms of
the compliance agreement.
(h) Person classification. The executive director shall
assign a classification to a person by adding the complexity weighted
site ratings of all the sites owned and/or operated by that person
in the State of Texas. Each site that a person is affiliated to will
receive a point value based on the compliance history rating at the
site multiplied by the percentage of complexity points that site represents
of the person's total complexity points for all sites. Each of these
calculated amounts will be added together to determine the person's
compliance history rating.
(i) Notice of classifications. Notice of person and
site classifications shall be posted on the commission's website after
30 days from the completion of the classification. The notice of classification
shall undergo a quality assurance, quality control review period.
An owner or operator of a site may review the pending compliance history
rating upon request by submitting a Compliance History Review Form
to the commission by August 15 each year.
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